TM: Sound Mark Registration in Delhi, India
This post discusses deeply about Sound marks as a non-conventional trademark and how sound marks are registered in India and the US. We are expert in every kind of TM registration like Sound Mark Registration in Delhi, India.
In a global world, where business is continuously and rapidly innovating to attract buyer’s attention and develop distinctive identities, non-traditional trademarks are one of the latest tools. With the old factory trademarks, marks generally contains a list of humdrum of phrases, alphabets, , pictures, symbols, letters, logos numerals, words, logos, or a combination of one or more of these constituents.
Non-traditional trademarks go beyond these conventional elements and include marks based on sound, smell, shape, pantone/color, graphical presentation, taste or texture. Recently the Indian Trademark Registry identified and registered Yahoo!’s non-conventional sound mark that is used to operate as a trademark allowing a person to recognize the origin of a product or service. Yahoo sets one of the best Non-traditional trademarks examples with its three-note Yahoo yodel. India’s recognition of non-conventional sound marks by registering Yahoo!’s Yodel sound mark is a clear sign of the evolving intellectual property regime in the country. Slowly but steadily, the Constitution and judiciary of India are realizing the importance of non-traditional marks.
The function of a sound trademark is to uniquely recognize the commercial roots and motive of products/ services by way of an audio clip. In general, applications in the form of musical notes, chimes, symphonic or orchestral notations explaining the sound meet these requirements, whereas onomatopoeic descriptions do not. This typically means that musical notes that are capable to represent in the form of musical notations are welcomed and approved as non- traditional sound trademarks whereas noises like a cat’s meow or birds chirping which cannot be described by a musical notation but has to be represented through a sonogram or onomatopoeically cannot qualify for a trademark.
In older times, sounds did not stand eligible as trademarks but the World Trade Organization’s Agreement on Trade- Associated Aspects of Intellectual Property Rights identified this right and demands member countries to widen their statutory definition of trademark to encompass "any signal potential of distinguishing the products or services of one undertaking from those of other undertakings. The instances of evolution of non-traditional marks include the shape trademark of the Coca-Cola bottle.
Trade and Merchandise Marks Act 1958 were significantly replaced by the Trademarks Act 1999 and comprehensively revised and reinforced the trademark regime. The new act was treated to be of utmost significance for India’s compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights and its liability as a member of the World Trade Organization (WTO). Under the old legal act, non-conventional trademarks such as three-dimensional (3D) marks, sounds, smell, color combinations and tastes could not be registered. However, under the current new act, ‘marks’ are characterized as any combination of:
- labels and tickets
- alphabets, words, phrases and numerals
- pantone colors and textures
- Shapes and packaging.
Sound Mark in Indian Law
India is amongst the few Asian countries to have wide opened its doors to the judiciary protection of sound marks. The Trademarks Registry permitted India’s first sound mark registration for Yahoo!’s three-note yodel in the year 2008. The application was filed in the year 2004 with the following explanation: “the mark comprises of a human voice yodeling the word Yahoo!”. This further inspired other businesses to seek and secure registration of their musical notations.
In India, the test for identifying whether a sound mark is entitled for registration once it has successfully cleared the graphical representation requirement is to scrutinize whether the mark is unique per se or can differentiate the products or services of the owner from those of others. In general, a successful registration of a non-conventional mark must be backed by strong evidence of factual distinctiveness. Till date, the Indian judiciary has come across no cases regarding the enforcement of sound marks or parts of musical notation that are similar to marks already registered.
The Trademark Registry of India has permitted registration to ICICI Bank Ltd for its sound mark by registering the very sound notes that makes the jingle “Dhin Chik Dhin Chik”. ICICI Bank with its sound mark jingle made it to the first Indian business entity to acquire and secure sound mark registration– a promising achievement in this field of trademark regulation.
Subsequently, Bajaj Allianz is noted to have successfully registered its sound mark in India. The Trademarks Registry has also been reported to have newly accepted Intel's registration application for its sound mark.
Sound Mark in United States
In the United States, whether a sound can cater as a trade mark "depends on the phonic perception of the ear (listener) which may be as transient as the sound itself unless, of course, the sound is so intrinsically distinctive that it connects to the subliminal imagination of the listener to be enliven when heard and to be linked with the event with which it struck. In simple, if a sound lingers in the listener’s mind and the listener consequently relates the event or source with that sound then the sound may qualify for trademark registration.
Internationally, the most prominent case in context of non-traditional sound mark registration is that of Metro Goldwyn Mayer (MGM) Corporation, who had filed for the registration of a sound, that of a Lion roaring, by delivering a sonogram for the "Lion's roar". The application has been rejected in the EU. And surprisingly, the same trademark has granted registration in the US which made it the most celebrated case.
Most popular sound marks that are registered around the world include:
- Pillsbury Doughboy’s childlike giggle
- Lion’s Roar of MGM
- Taco Bell Bell
- The Tarzan Yell
- Nokia tune
- 20th Century Fox Fanfare
- Sound of Harley Davidson
- ICICI jingle
- ‘Intel inside’ Bong
- Federal Signal Q2B Siren
The registration of non-traditional marks in specific ‘sound marks’ is still a grey area that requires to be further explored.